19 Jul 20 Years of the International Criminal Court: An Interview with Eduardo Gonzalez

This month marks the 20th anniversary of the International Criminal Court, founded on the premise that there can be no lasting peace without justice. I first heard about the Court when traveling with Eduardo Gonzalez, a transitional justice expert, high up in the Andes of Perú, during the public hearings of the Peruvian Truth and Reconciliation Commission, which he was directing. I reached out to Eduardo to ask him about the impact of the Court thus far, its limitations, and the role of Latin American civil society in its creation. 

Pamela Yates: What were the antecedents in Latin America that made civil society there become a fundamental player in the creation of the International Criminal Court?

Eduardo Gonzalez: I joined the NGO Coalition for the International Criminal Court in 1998, as an intern, tasked with locating Latin American NGOs that would be interested in contributing actively to the preparatory process to establish the Court and to the Rome Conference.

The Coalition had been created as key international human rights organizations entrusted the World Federalist Movement to establish a small secretariat and convene meetings in order to converge around a civil society strategy. 

Latin American human rights defenders were critically important in those efforts: they had significant experience exposing and fighting impunity by authoritarian regimes, or as a result of armed conflicts. They also had taken cases of human rights violations to international bodies, like the Inter American Court for Human Rights and the specialized UN treaty bodies. Also, at the time, Argentine and Chilean defenders were using universal jurisdiction to seek judicial fora against perpetrators. 

What were the biggest obstacles to the Court’s creation?

The ICC had been originally proposed after Nuremberg, as judicial principles had been identified by the international community. The Cold War, with the generalization of proxy conflicts among the two geopolitical competitors, paralyzed the effort to establish a fair and independent court. 

In the 1990s, the end of the Cold War created a window of opportunity: the UN Security Council had established international tribunals for the former Yugoslavia and for Rwanda. There was the inclination to establish a permanent body instead of case by case as hoc institutions. 

The obstacles, however, existed: powerful countries like the U.S. intervened actively in the debates with no intention to join the Court, focused mostly in avoiding an institution capable of trying U.S. service members accused of war crimes. Some delegations, particularly from Arab countries, expressed skepticism about the concept of gender justice. In general, very few were optimistic that such a novel institution would be ratified any time soon. The challenge of securing 60 ratifications was titanic.

What were your hopes for the ICC and how do you feel about it now?

I was quite optimistic that the court would discourage some perpetrators from engaging in atrocities. Together with universal jurisdiction, the ICC could corner powerful abusers. Also, I thought that African nations that had actively valued the Rome Statute and had ratified in high numbers would take advantage of the ICC to take cases there and provide an impetus for the development of strong institutions after the impact of internal conflicts. Then, in Latin America I hoped the court would discourage ongoing conflicts as combatants became aware of the significance of the court. 

Those hopes were not always vindicated, but I am not completely disappointed. In the African continent, some leaders successfully used a cynical argument according to which cases against African leaders were colonial or anti-African. I am of the opinion that abandoning victims in the continent would be effectively colonial. Regrettably, in that region many countries joined hands to diminish the effectiveness of the Court defending powerful abusers like Sudan’s Al Bashir.

In Colombia, actually, I think the ICC had a positive impact, ensuring the government opened credible investigations in war crimes, in order to avoid a complementary case in the court. Also, I believe the Rome Statute provided key standards for the protection of victim rights. I would not discard the idea that some combatants saw the Court as part of a new International scenario that favored peace negotiations. 

Can the Court succeed without major powers like China, Russia and the U.S. being members?

And India! The Court can succeed to a large extent without those three big powers. However, it will do so only in a partial way, failing when cases involve perpetrators from those countries. 

It is true that powerful countries like the U.S. have sometimes adopted a position of benign neglect towards the Court, and even collaborated with it, like in the opening of the cases in Libya. But the Court should not be acceptable only when it matches the geopolitical interests of the super powers. The conflictive decisions and general impunity in cases linked to Afghanistan and occupied Palestine are indicators of that. 

After 20 years, what impact has the Court had?

Some perpetrators have been tried and sentenced. Legal standards have been set and a certain “demonstration effect” has taken place. Countries have been encouraged to develop and use their own legal systems, which, I think, is the most effective way to protect human rights. 

However, the Court itself has been slow and exorbitantly costly in relation to the number of cases and convictions, and there is valid skepticism about its prosecutorial strategies. 

In addition, member states failed to defend the court effectively when regional leaders attacked it in Africa, or when the U.S. was hostile. In the first case, many countries failed to collaborate with the court when powerful regional perpetrators were indicted. In the second case, dozens of countries agreed to sign agreements excluding U.S. service members from any liability in case they were investigated by the court. 

I think the world would be a more violent and hopeless place without the ICC, but it needs to be far more effective to realize its promise.

How has it affected the work you do as a transitional justice expert?

In a positive sense, it has created a conviction that absolute impunity is legally impossible and politically risky. Countries know that certain standards exist and that they will be enforced, or at least that they will create strong pressure. Therefore, the existence of the ICC and the desire to avoid highly visible cases there has encouraged countries to look for national transitional justice strategies. 

Civil society activists are quite sophisticated about using the court, to disseminate standards and to open investigations. The ICC certainly has become an element in the repertory of justice. 

On the weak side, the ICC is sometimes seen as a panacea. The idea that only criminal justice is needed can be very detrimental for the interests and rights of victims. It sometimes deviates the attention from essential rights like truth and reparation, or brings a focus on extremely technical juridical procedures and reasoning that is barely comprehensible. 

Some delegates used to say in 1998 that the ICC was an idea whose time had come. I believe they were right, but only to start the deployment of that idea. There are still promises to be fulfilled. 

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Featured image: Jimmy Otim, at the school where he was kidnapped by the Lord’s Resistance Army (LRA) in Uganda, then forced to be a child soldier. The LRA has been in the sights of ICC prosecutors since the court began operating in 2002. After escaping the LRA he went on to be an Outreach Director for the ICC and worked with Skylight on The Reckoning. Photo credit: Pamela Yates, Skylight